New Racial Profiling Guidance Remains More of the Same

December 11, 2014

This week, Attorney General Eric Holder released the revised “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” expanding the guidance to now include a ban on religion, national origin, sexual orientation and gender.

While this week’s release was welcomed by MPAC and other national civil rights and faith-based organizations working to improve federal profiling guidance, it included troubling exemptions and loopholes. The most problematic of the exemptions included:

  • The lack of application to state and local law enforcement. What happens when a local law enforcement agency develops programs without regard to racial profiling? We all witnessed the New York Police Department’s  (NYPD) Stop and Frisk program, which essentially racially profiled African American and Latino Americans and other minorities disproportionately over other New Yorkers. Stop and Frisk, a program implemented in 2002, has stopped and interrogated over four million innocent New Yorkers. We cannot continue to allow state and local law enforcement to profile the citizens they are tasked to protect and serve because they do not fall under the federal guidelines.
  • The troubling exception for the Transportation Security Administration (TSA) and U.S. Customs and Border Patrol (CBP). Why allow an exception for these two agencies that are already fraught with issues concerning agents stopping people based on race, religion and national origin? After AG Holder announced to his Justice colleagues that he believed that “border agents did not need to consider race or ethnicity,” when stopping individuals, it is shocking that the revised Guidance includes this loophole. Unfortunately, with the inclusion of this exemption, we will not be surprised with the continued reports of profiling at borders and airports.
  • The allowance of the Federal Bureau of Investigation (FBI) to continue their offensive “mapping” of communities. Essentially, the FBI maps communities based on stereotypes like race, religion, ethnicity, gender, etc. in order to determine mass surveillance or widespread intelligence gathering of that particular community. Mapping is both ineffective and counterproductive; the idea that law enforcement agents employ a “needle-in-a-haystack” approach to finding criminals is an absolute waste of resources and just plain bad policing. In a released statement, outgoing Chair of the Subcommittee on the Constitution, Civil Rights and Human Rights Sen. Dick Durbin (D-IL) stated, “the policy technically eliminates the national security loophole, but includes new language that would allow the FBI to continue to profile innocent Americans even when there is no suspicion of wrongdoing.”

All-in-all, the revised Guidance’s gaping loopholes essentially leaves us with a document that lacks teeth to truly address racial and religious profiling. The Guidance should be expanded to include state and local law enforcement and the exemptions and loopholes need to be closed or else the release was simply a weak attempt at window dressing the 2003 Guidance. In a time when we see abuse by law enforcement agents in the FBI, CIA, state and local law enforcement, we need more robust safeguards -- the revised Guidance does not provide for those protections. With champions for change like Durbin who stated, “I’ve pushed the Administration to put an end to racial profiling for over a decade, and after reviewing these new rules this fight will continue,” MPAC will continue to advocate for the revision of these Guidelines both with the Administration and members of Congress.

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